Legalize / United Kingdom / Statutory-Instrument

The School Staffing (England) Regulations 2009

Type Statutory-Instrument

Publication 2009-10-02

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 2nd October 2009

Laid before Parliament: 9th October 2009

Coming into force: 2nd November 2009

The Secretary of State for Children, Schools and Families, in exercise of the powers conferred by sections 72 and 138(7) of the School Standards and Framework Act 1998[^f00001] and sections 19(3), 26, 34(5), 35(4) and (5), 36(4) and (5) and 210(7) of the Education Act 2002[^f00002] makes the following Regulations:

PART 1 — General

Citation, commencement and application

1

(1) These Regulations may be cited as the School Staffing (England) Regulations 2009 and they come into force on 2nd November 2009.

(2) These Regulations apply only in relation to England.

Revocations and amendments

2

The Regulations specified in Schedule 1 are revoked to the extent specified in the third column of that Schedule.

Interpretation

3

(1) In these Regulations—

“PA 1997” means the Police Act 1997[^f00003];

“EA 2002” means the Education Act 2002;

“authority” means the local education authority by which a maintained school is, or a proposed school is to be, maintained;

“dismissal” is to be interpreted in accordance with sections 95 and 136 of the Employment Rights Act 1996[^f00004];

“employment business” has the meaning given by section 13(3) of the Employment Agencies Act 1973[^f00005];

“enhanced criminal record certificate” means an enhanced criminal record certificate issued under section 113B of PA 1997 which includes , in such cases as are from time to time prescribed under section 113BA(1) of that Act, suitability information relating to children within the meaning of section 113BA(2) of that Act;

“interim prohibition order” means an order made by virtue of paragraph 3 of Schedule 11A to EA 2002;

“negative up-date information” means up-date information of a kind falling within section 116A(8)(b)(i) or (c)(i) of PA 1997;

“prohibition order” has the meaning given by section 141B of EA 2002;

“relevant activity” means any activity which is a regulated activity relating to children within the meaning of—Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006; orPart 1 of Schedule 4 to that Act as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012;

“safer recruitment training” means training provided ... for the purpose of ensuring that those who undertake it know how to take proper account of the need to safeguard and promote the welfare of children when recruiting staff;

“support staff” means any member of a school’s staff other than a teacher;

“teacher” means—a person who is a school teacher for the purposes of section 122 of EA 2002 Act; anda person who would fall within paragraph (a) but for the fact that the other party to the contract is not an authority or a governing body of a school falling within Part 3 of these Regulations.

“up-date information” has the meaning given by section 116A(8) of PA 1997.

(2) References to a vacancy in any post include a prospective vacancy in the post.

(3) A person is to be treated as meeting any staff qualification requirements if the person—

(a) fulfils any requirements with respect to qualifications or registration which apply to the person as a result of regulations made under sections 132 to 135 of EA 2002[^f00006] and regulations made under section 19 of the Teaching and Higher Education Act 1998[^f00007];

(b) meets any conditions with respect to health and physical capacity which apply to the person as a result of regulations made under section 141 of the 2002 Act[^f00008];...

(c) is not barred from regulated activity relating to children in accordance with section 3(2) of the Safeguarding Vulnerable Groups Act 2006 in any case where it is intended that the person will engage in any activity which is a regulated activity relating to children within the meaning of Part 1 of Schedule 4 to that Act; and

(d) is not subject to a prohibition order or interim prohibition order or subject to any direction made under section 142 of EA 2002 or any prohibition, restriction or order having effect as such a direction.

(4) References to support staff include support staff employed, or engaged otherwise than under a contract of employment, to provide community facilities and services under section 27 of EA 2002.

(5) For the purposes of these Regulations a person applies for an enhanced criminal record certificate if—

(a) the person countersigns an application for the certificate as a registered person, within the meaning of section 120 of PA 1997, or an application is countersigned on the person’s behalf; and

(b) the application is submitted ... in accordance with Part 5 of that Act.

(6) For the purposes of these Regulations an enhanced criminal record certificate is subject to up-date arrangements in the circumstances set out in section 116A(3) of PA 1997.

(7) References to the giving of negative up-date information are references to the giving of such information under section 116A(1) of PA 1997.

Delegation of authority

4

(1) The governing body may delegate—

(a) any of the functions conferred upon it by these Regulations other than those conferred by regulations 5 to 8 and 9, 15(3) and (5) and 27(3) and (5); and

(b) its power to appoint or dismiss any member of staff at a school to which Part 3 applies.

(2) Subject to paragraph (4), any delegation under paragraph (1) may be to—

(a) the head teacher,

(b) one or more governors; or

(ba) a committee established by the governing body; or

(3) Where the governing body has made any delegation under paragraph (1) to one or more governors and the function being delegated does not directly concern the head teacher —

(a) the head teacher may attend and offer advice at all relevant proceedings; and

(b) the governor or governors to whom the delegation has been made must consider any such advice.

(4) Any delegation under paragraph (1) of—

(a) the determination that the head teacher should cease to work at the school; or

(b) the power to appoint or dismiss the head teacher,

may be to one or more governors, other than a governor who is the head teacher.

(5) Paragraph (2)(ba) does not authorise delegation to a committee that includes an associate member who is a pupil or a member of staff at the school.

Head teacher duties and entitlements

5

(1) The governing body must ensure that the head teacher at the school—

(a) complies with the duties imposed upon the head teacher; and

(b) benefits from any entitlement conferred upon the head teacher,

by any order under section 122 of the EA 2002 (teachers’ pay and conditions)[^f00010].

(2) In discharging its duty under paragraph (1)(a), the governing body must have regard to the desirability of the head teacher being able to achieve a satisfactory balance between the time spent discharging the professional duties of a head teacher and the time spent by the head teacher pursuing personal interests outside work.

Performance of head teacher

6

(1) Where the authority has any serious concerns about the performance of the head teacher of a school it must—

(a) make a written report of its concerns to the governing body of the school; and

(b) at the same time, send a copy of the report to the head teacher.

(2) The governing body must notify the authority in writing of the action it proposes to take in the light of the authority’s report.

Conduct and discipline of staff

7

(1) The governing body must establish procedures—

(a) for the regulation of the conduct and discipline of staff at the school; and

(b) by which staff may seek redress for any grievance relating to their work at the school.

(2) Where the implementation of any determination made by the governing body in operation of the procedures requires any action which—

(a) is not within the functions exercisable by the governing body by or under EA 2002; but

(b) is within the power of the authority,

the authority must take that action at the request of the governing body.

Capability of staff

8

The governing body must establish procedures for dealing with lack of capability on the part of staff at the school.

Safer recruitment training

9

With effect from 1st January 2010, the governing body must ensure that—

(a) any person who interviews an applicant for any post under these Regulations has completed the safer recruitment training; or

(b) in the case where—

(i) a selection panel is appointed for that purpose under regulation 15 or 27; or

(ii) the governing body delegates the appointment of a member of stafftotwo or more governors or one or more governors and the head teacher under regulation 4(1),

at least one member of that panel or group has completed the safer recruitment training.

Amendment of the School Governance (Procedures) (England) Regulations 2003

10

The School Governance (Procedures) (England) Regulations 2003[^f00011] are amended as follows—

(a) in regulation 16, for paragraph (1) substitute-

(1) Subject to regulation 17 of these Regulations, regulation 3(2) of the Religious Character of Schools (Designation Procedure) Regulations 1998[^f00012] and regulation 6 of the Education (School Government) (Terms of Reference) (England) Regulations 2000[^f00013], the governing body may delegate any of its functions to— (a) a committee; (b) any governor other than a governor who is the head teacher; or (c) where the function being delegated does not directly concern the head teacher, the head teacher (whether or not he is a governor).

(b) in regulation 17,after paragraph (4) insert-

(5) The governing body may not delegate functions relating to powers conferred, and the duties imposed, on governing bodies by or under the SchoolStaffing (England) Regulations 2009[^f00014] save as provided in those Regulations.

PART 2 — Provisions Relating to Community, Voluntary Controlled, Community Special and Maintained Nursery Schools

Application of Part 2

11

This Part applies to community, voluntary controlled, community special and maintained nursery schools.

Manner of appointment

12

(1) Where a governing body approves, identifies, selects or recommends a person for appointment under regulation 15(5), 15(7), 16(3) or 17(1), it must determine whether that person is to be appointed—

(a) under a contract of employment with the authority;

(b) by the authority otherwise than under a contract of employment; or

(2) The governing body must check—

(a) the identity of any such person;

(b) that the person meets all relevant staff qualification requirements; and

(3) Where it is intended that the person will engage in relevant activity, the governing body must obtain an enhanced criminal record certificate in respect of any such person before, or as soon as practicable after, the person’s appointment.

(3A) Where a governing body obtains an enhanced criminal record certificate in respect of any such person and that certificate is subject to up-date arrangements, it must consider whether to request up-date information in relation to the certificate under section 116A(1) of PA 1997.

(4) In the case of any such person for whom, by reason of having lived outside the United Kingdom, obtaining such a certificate is not sufficient to establish that person’s suitability to work in a school, the governing body must make such further checks as the authority consider appropriate, having regard to any guidance issued by the Secretary of State.

(5) The governing body must complete the checks referred to in paragraphs (2) and (4) before a person is appointed.

(6) Paragraphs (3) and (4) do not apply to a person who has worked in—

(a) a school in England in a post—

(i) which brought the person regularly into contact with children or young persons; or

(ii) to which the person was appointed on or after 12th May 2006 and which did not bring the person regularly into contact with children or young persons; or

(b) an institution within the further education sector in England , or in a 16 to 19 Academy, in a post which involved the provision of education which brought the person regularly into contact with children or young persons,

during a period which ended not more than three months before the person’s appointment.

(7) The governing body must keep a register containing the information specified in Schedule 2.

Application of regulation 12 to other appointments

13

Regulation 12(2) to (6) and (7) (insofar as it relates to paragraphs 2 to 4A, 7 and 8 of Schedule 2) also applies in relation to—

(a) any person appointed by an authority for the purpose of working at a school to which this Part applies in the temporary absence of a member of staff of the school; and

(b) any person appointed by an authority to work at a school as a member of the school meals staff.

Authority’s entitlement to offer advice

14

(1) A representative of the authority may attend and offer advice at all proceedings relating to the selection or dismissal of any teacher.

(2) The governing body must consider any advice offered by the authority pursuant to paragraph (1).

Appointment of head teacher and deputy head teacher

15

(1) The governing body must notify the authority in writing of—

(a) any vacancy for the head teacher; and

(b) any post for a deputy head teacher which it has identified as one to be filled.

(2) The governing body must advertise any such vacancy or post in such manner as it considers appropriate unless it has good reason not to.

(3) Where the governing body advertises any such vacancy or post, it must appoint a selection panel, consisting of at least three of its members, other than a governor who is the head teacher or (as the case may be) a deputy head teacher, to—

(a) select for interview such applicants for the post as it thinks fit and, where the post is that of head teacher, notify the authority in writing of the names of the applicants selected;

(b) interview those applicants who attend for that purpose; and

(c) where it considers it appropriate, recommend to the governing body for appointment one of the applicants interviewed.

(4) If, within a period of seven days beginning with the date when it receives notification under paragraph (3)(a), the authority makes written representations to the selection panel that any applicant is not a suitable person for the post, the selection panel must—

(a) consider those representations; and

(b) where it decides to recommend for appointment any person about whom representations have been made, notify the governing body and authority in writing of its reasons.

(5) Subject to regulation 12(2) and, where appropriate, regulation 12(4), where the person recommended by the selection panel is approved by the governing body for appointment, the authority must appoint that person, unless the governing body has determined that the person is to be appointed by the governing body otherwise than under a contract of employment pursuant to regulation 12(1)(c).

(6) If—

(a) the selection panel does not recommend a person to the governing body;

(b) the governing body declines to approve the person recommended by the selection panel; or

the selection panel may recommend another person for appointment in accordance with this regulation (but this does not prevent it from recommending an existing applicant).

(7) Subject to regulation 12(2) and, where appropriate, regulation 12(4), where the governing body decides for good reason not to advertise and conduct a selection process to fill the vacancy or post in accordance with paragraphs (2) to (4), the authority must appoint the person identified by the governing body to fill the vacancy or post, unless the governing body has determined that the person is to be appointed by the governing body otherwise than under a contract of employment pursuant to regulation 12(1)(c).

Appointment of other teachers

16

(1) This regulation applies to any post of teacher, other than a post of head teacher or deputy head teacher.

(2) Where the governing body identifies any such post to be filled for a period of more than four months, it must provide the authority with a specification for the post.

(3) Subject to regulation 12(2) and, where appropriate, regulation 12(4), where a person is selected by the governing body for appointment, the authority must appoint that person, unless the governing body has determined that the person is to be appointed by the governing body otherwise than under a contract of employment pursuant to regulation 12(1)(c).

(4) If the authority declines to appoint a person that the governing body selects, the governing body may select another person for appointment in accordance with this regulation (but this does not prevent it from selecting an existing applicant).

Appointment of support staff

17

(1) Subject to regulation 21, where the governing body identifies a support staff post to be filled, it may recommend a person to the authority for appointment.

(2) Where the governing body recommends a person to the authority for appointment under paragraph (1) it must provide the authority with—

(a) the name of any person it recommends pursuant to paragraph (1); and

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